Looking Into the DOMA Defense Contract

The contract between House General Counsel Kerry Kircher and attorney Paul Clement, on behalf of King & Spalding, to “represent the Bipartisan Legal Advisory Group as a party or as an amicus” in “one or more civil actions” relating to “the constitutionality of Section III of the Defense of Marriage Act” has been released. The news of the agreement became public on April 18.

Kircher was authorized to pursue such an agreement by the BLAG on March 9. The contract also was signed by Rep. Dan Lungren (R-Calif.), who is the chairman of the Committee on House Administration, the approval of which the contract states is required for the contract to be effective.

The contract, which was signed on April 14, states that Clement “will be principally responsible” for the litigation and that Daryl L. Joseffer and Jeffrey S. Bucholtz will “personally perform a substantial portion” of the litigation. Bucholtz’s name was on the brief filed on April 18 seeking intervention in the Windsor v. United States case brought by the widow of Thea Spyer, Edith Windsor, who had to pay a $350,000 estate tax that she would not have had to pay had Windsor and Spyer’s marriage been recognized by the federal government.

Clement, a partner at King & Spalding (bio), served as the solicitor general in the George W. Bush administration, which is the top appellate litigator in the government. He has argued more than 50 cases before the U.S. Supreme Court and UCLA Law professor Eugene Volokh told Metro Weekly that Clement is “one of the leading appellate advocates of his generation.” Clement earlier clerked for Justice Antonin Scalia and, before that, Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit.

Bucholtz, a partner at King & Spalding (bio), clerked for now-Justice Samuel Alito when Alito served on the U.S. Court of Appeals for the Third Circuit and worked in the Justice Department’s Civil Division throughout most of the George W. Bush administration, including for six months as the Assistant Attorney General in charge of the Civil Division. Joseffer, also a partner at King & Spalding (bio), argued 11 cases before the U.S. Supreme Court while working in the Solicitor General’s Office in the George W. Bush administration and earlier had clerked for Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit.

There is a “cap” set on the services at $500,000, but the contract contemplates the possibility that such a cap could be raised. A “blended rate” of $520 has been set for attorneys’ hourly services, with non-attorney services to be billed at “75 percent of [King & Spalding’s] usual and customary rates” for such services. The blended rate means that Clement will be working at a far lower rate than he usually commands, but that more junior associates will have their services billed out at a higher rate than they would usually be billed. This is not uncommon in government outside counsel contracts.

No experts can be retained, per the contract, without the prior consent of the House General Counsel, Kircher, who has worked in the House General Counsel’s office since 1995.

It also is notable that the nondiscrimination clause in the contract states that King & Spalding “will not discriminate in its performance of this Agreement because of race, color, religion, sex, national origin, age, disability or any other prohibited basis.” Neither sexual orientation nor gender identity are included. This despite the fact that the firm clearly does include such categories in its own nondiscrimination policy.

Talking about how it is “committed to having the brightest and most diverse lawyers it can find, including members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community,” the firm notes, “The firm’s non-discrimination policy prohibits discrimination based on sexual orientation and gender identity. Further, domestic partner benefits are offered for same-sex couples.”

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